from the inevitable-law-enforcement-response:-'make-me' dept

The NYPD may be arbitrarily slapping the word "secret" on its internal documents and making sure all of its intelligence stays safely within its walls, but when it comes to communicating with the outside world, it's apparently a one-way transaction. It talks (when it wants to and can completely guide the narrative) but it rarely ever listens. Case in point: the Brooklyn DA says he won't prosecute low-level marijuana possession charges, so naturally the Brooklyn division tells its officers that low-level marijuana possession arrests will continue uninterrupted.

A federal lawsuit, which cites arrests of people who recorded police confrontations or activity, was filed on Tuesday asking a judge to declare that people have a right under the First Amendment to film or record officers working in public places.

The suit was filed in Federal District Court in Manhattan on behalf of one of the people arrested, and seeks a permanent injunction barring New York City employees from retaliating against those who record them in public.

The NYPD apparently believes it's exempt because there's been no specific ruling from a district court covering its jurisdiction. This despite the fact that the DOJ itself fired off a letter in response to a lawsuit brought Baltimore that stated plainly:

[T]he justification for this right is firmly rooted in longstanding First Amendment principles.

This also despite the fact that its own Patrol Guide say photographing police isn't an arrestable offense.

[T]he Police Department Patrol Guide states that “taking photographs, videotapes or tape recordings” do not constitute probable cause for arrest or detention so long as the activity does not jeopardize the safety of officers or others.

This also despite the fact that the NYPD's own chief of federal litigation made the following statement:

"[B]ystanders are allowed to film police officers as long as they’re not interfering with the officers’ duties and/or police operations.”

The NYPD may be trying to dodge this on jurisdiction specifics, but note that the DOJ's letter doesn't specify this only applies to Baltimore. The letter plainly says "First Amendment right," which is something applied to all Americans, regardless of jurisdiction. It also references the Glik decision, which plainly established citizens' right to record.

Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.(2) See, e.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)

The footnote (2) begins with this unambiguous sentence:

There is no binding precedent to the contrary.

And yet, the NYPD continues to harass, arrest and shut down citizens who record police interactions. Shawn Thomas' experience, which we detailed here earlier, saw him harassed by a police officer who claimed he was interfering with police business despite the fact that he had to walk 30 feet away from the detained suspect to deliver this statement. The whole interaction began with police intimidation tactics and culminated in the arrest of Thomas.

Debra Goodman, was taking a cellphone video of paramedics assisting a woman in a wheelchair on West 73rd Street and Broadway last year before a police officer intervened.

"He asked me to produce ID. I refused, because I knew I wasn’t doing anything wrong,” Goodman told CBS. “And then he grabbed my arm and handcuffed me, and told me I was under arrest.” She was held for 25 hours.

This lawsuit asks for a permanent injunction prohibiting retaliatory actions from NYPD officers against those who record them. Time and money are going to be poured into "protecting" a right that already unequivocally exists. And there's no guarantee the NYPD will pay attention even if it receives a jurisdiction-specific injunction. After all, a federal appeals court ruled the state's wiretapping law (something frequently abused to prosecute citizens for recording cops) was unconstitutional and this decision was greeted by Morgan County prosecutors and law enforcement with a "so, business as usual" shrug. It took the involvement of the ACLU to get Morgan County to align itself with a ruling that plainly stated recording police was not a violation of the wiretapping statute.

What the NYPD is doing is ignoring common knowledge and several court decisions. The DOJ's letter may have been addressed to Baltimore's police department, but the wording (and the cases cited) apply to every law enforcement agency. The US government itself has declared that citizens have this right, something that comes bundled with the First Amendment. It's utterly ridiculous that anyone should have to force the issue in a "local" court in order to make the NYPD respect citizens' First Amendment rights.

from the restrictions-on-the-press dept

Like many media properties, we've filed Freedom of Information Act requests to seek out information at both the federal and state levels. The various federal and state freedom of information regulations are important tools for the public, and also for those doing journalism to seek out and report on important information that should be public. Unfortunately, some states like to limit these laws, and Virginia in particular has made its law such that it limits filings to only Virginia residents... or to a very small number of media companies that meet its "exemption" rules. Basically, it will allow freedom of information requests from "traditional newspapers, print magazines or FCC-licensed broadcast media." So if you're an online-only media property and not a Virginia resident, you're out of luck.

A small number of other states also have "citizens only" clauses in their FOI laws, though Delaware's was recently struck down as unconstitutional. However, Virginia is the only state that allows a partial exemption for some media players, but not for others. Even so, a court recently upheld Virginia's law as constitutional. This has created both a circuit split (with different courts in different circuits finding very differently on the general issue of "citizens only" clauses), and an unfair burden on anyone doing online-only reporting and thus not qualifying for the specific exemption in Virginia's law.

As the Supreme Court has been asked to hear an appeal of that case, we've signed onto an amicus brief along with the American Society of News Editors, the Center for Investigative Reporting, Ars Technica, Daily Kos, Grist, Matthew Lee, Muckrock, Automattic and Tumblr, arguing that this is an issue where existing rulings and the arbitrariness of the exemptions in the law have created massive uncertainty for anyone doing investigative reporting. So our filing is asking the Supreme Court to take the case and clarify whether or not Virginia's restrictive law is constitutional. Hopefully, the Court recognizes the problems of the law and makes clear that, in this age when anyone can do reporting, limiting such rules to only citizens or an arbitrary definition of professional media is too restrictive.

from the oh-really? dept

One of the more stunning realities that has become clear in watching the entertainment industry, as it responds to people who are actually impacted by ever more draconian copyright laws, is the fact that the industry doesn't view other positions as worth hearing at all. To the industry, copyright law has one purpose and one purpose only: to protect the big players in the content making business. Everyone else is secondary. Unfortunately, those big industry players have powerful lobbyists. That's why it was so nice to see Canada at least hold an open process to hear from the public. Of course, we were skeptical if those voices would really be heard, and stories about the industry itself stacking the deck at public gatherings did not bode well.

Separately, with so much pressure coming from other countries, we wondered if Canada would be able to resist implementing ever more draconian copyright laws, which would be a serious drain on the Canadian economy. So far they have resisted, but the pressure from outside continues to be fierce. We recently noted that US lobbyists and lawyers were insisting that Canada needed to be dragged into the 21st century, and now European trade negotiators are pushing hard on Canada to change its copyright laws despite no actual evidence of any problem with existing laws.

But what's most troubling of all is that these trade reps don't seem to care at all what Canadian citizens had to say. Despite receiving thousands of well-argued, well-thought-out statements concerning Canadian copyright law, EU trade negotiators are dismissing the whole process as "a tactic to confuse." To confuse who? About what? Holding an open discussion with citizens, rather than just backroom deals to protect a small group of companies? I'd argue that's the very opposite of a tactic to confuse, but rather it's a tactic to enlighten.

from the just-asking dept

As newspaper folks continue to insist that only newspapers can really do investigative reporting, their reasoning just doesn't hold up to scrutiny. The latest is publisher (not radio host) Alex Jones who suggested in a recent interview that we need big news organizations to do investigative reporting, because the subjects of those reports are likely to try to intimidate the investigators and only a big organization can stand up to that sort of intimidation. However, Tim Lee points out why that doesn't make much sense, and why a group of concerned citizens is probably a lot less likely to be intimidated than a single organization. It's the same basic theory as the difference between a distributed system and one with a single point of failure:

Jones gets the implications of this story completely backwards. It's only because newspapers are large, profitable, commercial enterprises that the kind of intimidation techniques he talks about work at all. Imagine it's 2020 and the Idaho newspapers have all gone out of business, and they've been replaced by several hundred bloggers, most of them amateurs. A whistleblower discovers some evidence of wrongdoing by a prominent Mormon official. Is it easier or harder for the whistleblower to get the word out?

Obviously, it's easier. She can anonymously email the evidence to a dozen different bloggers. Those bloggers don't have to all prepare long "investigative journalism" write-ups; some of them can just post the raw documents for others to look at. Once they're widely available, other bloggers can link to those raw documents and provide commentary. The official being criticized has three big problems. First, taking legal action will be vastly more expensive because he'd have to sue dozens of bloggers rather than just one newspaper. Second, many of those bloggers won't have any assets to speak of, so he's unlikely to recover his legal costs even if he wins. And finally, if he foolishly presses forward, he'll discover our friend the Streisand Effect: the fact that he files the lawsuit will cause a lot more people to cover the original allegations.

Likewise, the threat of a boycott only works because newspapers are for-profit operations with significant overhead. Threatening a boycott against, a blogger who writes in a his free time is no threat at all.

As if to prove this very point, there were stories this week about a newspaper columnist being fired (and, yes, the newspaper disputes some of the details) for writing a column that highlighted an investigation of a major advertiser in the newspaper. Oh, and what has the fired guy done? He's gone and set up his own blog. Again, none of this is saying that professional reporters and news organizations aren't an important part of journalism -- but the idea that no one else can do what they do is just silly.